Law Times

Law Times • March 18, 2013 ENFORCEMENT Defendant not authorized to effect any seizure upon any default Plaintiff financed purchase of motor vehicle with defendant. Motor vehicle had engine problems requiring repair. Defendant claimed plaintiff said plaintiff would not pay for motor vehicle because it was lemon. Plaintiff left to retrieve motor vehicle from repair shop. Defendant repossessed motor vehicle from repair shop. Plaintiff was not in default of payment at time of repossession. Plaintiff sought damages for unlawful seizure of motor vehicle by defendant. Defendant sought outstanding storage costs and shortfall from sale of plaintiff 's motor vehicle. Plaintiff had judgment. Defendant's claim was dismissed. Provisions in agreement did not give contractual rights to defendant to repossess vehicle. Purported seizure was unlawful. Defendant was not authorized to effect any seizure upon any default. Statements if made did not provide defendants with legal justification to make seizure. Statements if made did not meet threshold for default. Defendant had no reason to feel insecure when defendant had post-dated cheques and no cheque was returned NSF. Defendant failed to communicate insecurity to plaintiff and did not give notice of intended seizure. Christoforou v. Lovats Acceptance Corp. (Aug. 2, 2012, Ont. S.C.J., Prattas D.J., File No. SC11-119699-00; SC-11-11969900D1) 222 A.C.W.S. (3d) 951. Family Law CHILD WELFARE Judge found father had colossally bad judgment Appeal by father from summary judgment making children, aged five and seven, Crown wards without access. Children were apprehended from father in 2010. Mother had history of mental health problems and her whereabouts were unknown. Children were previously apprehended as infants but placed with father under supervision orders. Children were again apprehended from father in January 2010, after two years in his care, because of his drug and alcohol use. Father was charged with impaired driving and failing to provide breath sample. CAS argued father had made some positive gains but showed serious lapses in judgment that impacted his ability to provide safe home. Father shaved his head when asked to provide hair strand test, left mother alone with children and was charged with assaulting her. Father argued motions judge misapplied summary judgment test and argued he and CAS had been working towards family integration so there was triable issue. Children had been in care for over three years of their lives. Judge found father had no house, was unemployed, on social assistance and facing crimi- Page 15 CASELAW nal charges. Judge found he had colossally bad judgment and was unwilling to follow law and there was no chance children would not be made Crown wards after a trial. Appeal dismissed. Evidence of father's bad judgment was overwhelming. Father tried to purchase marijuana while living in shelter with child, had been charged with sexually assaulting teenage babysitter, children told workers about father's drinking and he missed access visits. Judge considered evidence before him and there was nothing contradicting CAS's evidence. While father had worked with CAS co-operatively, he turned around and showed bad judgment again. There were no material facts in dispute and Crown wardship was forgone conclusion. Children's Aid Society of Toronto v. M. (M.) (Nov. 21, 2012, Ont. S.C.J., Greer J., File No. FS-12018018) 222 A.C.W.S. (3d) 965. CUSTODY Appointment of boyfriend as applicant's representative was ill-advised Order addressed custody and access, child support, spousal support and property division. Applicant brought application to change order and support obligations. Applicant brought motion for permission to be represented by person who was not lawyer. Applicant sought to be represented by applicant's live-in boyfriend. Applicant had financial wherewithal to be represented by counsel. Applicant was well-educated and capable of representing herself. Boyfriend was potential witness. Boyfriend had no experience or training to conduct case in court. Boyfriend showed history of untrustworthy conduct and hostility towards respondent. Motion was dismissed. Applicant's claims of respondent's alleged bullying and difficulty in retaining trustworthy lawyer were not special circumstances. Interactions between parties in open court would be controlled by court. Respondent was represented by lawyer creating buffer between parties. Applicant did not show boyfriend had special expertise or that boyfriend's appointment as applicant's representative would be appropriate. Appointment of boyfriend as applicant's representative was ill-advised given animosity between respondent and boyfriend. Katz v. McNevin (Aug. 29, 2012, Ont. S.C.J., Leach J., File No. FS-09-8512-01) 222 A.C.W.S. (3d) 1015. PROPERTY Inappropriate to force wife to encumber jointly held property Application by husband for order permitting access to equity in family assets before trial. Parties separated in May 2011 after 11 years of marriage. Three children, aged 11, 9 and 6, resided with wife in former matrimonial home. Parties jointly owned matrimonial home, valued at $1.425 million with mortgage of $844,000, and cottage, valued at $660,000 with mortgage of $326,000. Husband also owned two properties valued at $130,000 with mortgage of $101,000. Husband's 2011 income estimated at $137,500 and wife's estimated at $94,700. Husband and new partner purchased home with closing scheduled for December 21, 2012. Husband required $350,000 to complete sale and brought within application for order permitting him to take line of credit secured against either matrimonial home or cottage. Husband also sought order for sale of cottage. Wife claimed husband had encumbered family assets for business purposes without her knowledge, threatened to sell properties and threatened to declare bankruptcy. Wife also said husband intentionally underemployed and failed to pay regular child support. Wife wanted to preserve opportunity to keep one property through equalization. Application dismissed. Particularly inappropriate to force wife to encumber jointly held property in face of husband's threat to declare bankruptcy. Court had no jurisdiction to order partition and sale of jointly owned property where sale could prejudice rights of other spouse under Family Law Act (Ont.). Issue of sale of one or both properties should be left to trial judge in absence of agreement in writing. Ohanessian v. Kalisz (Dec. 13, 2012, Ont. S.C.J., Greer J., File No. FS-11-00369732FIS) 222 A.C.W.S. (3d) 996. SUPPORT Addressing issue of support in Ontario not unfair to non-resident father Motion by father to strike out portions of mother's application related to child support. Mother, citizen of Canada, and father, citizen of France, met and had two children while residing in United States. Family moved to France in August 2008, but parties separated in August 2009. In July 2010, court in France ruled parties should have joint parental authority, habitual residence of children should be with mother in Canada and father should exercise access. Court also ordered father to pay child support of $300 per month per child, to be adjusted yearly. On mother's appeal, order for support increased to $500 per month per child. Mother and children moved to Canada in August 2010. In January 2012, mother filed motion to change custody, access and support arrangements, serving father during access visit in Ontario. Father filed motion for dismissal on basis Ontario had no jurisdiction to vary French order. Father also commenced proceeding in France for reconsideration of custody and access issues. Mother filed further motion asking for permission to file application www.lawtimesnews.com for, among other things, sole custody, specified access, including terms of contact, and child support, including for special or extraordinary expenses. Court granted mother permission to file application contemplated. French court then declined to accept jurisdiction on basis matters before court in Ontario. Father brought within motion on basis order already existed in France and mother's application merely disguised attempt to vary. Motion dismissed. Since France not reciprocating state under Interjurisdictional Support Orders Act, 2002 (Ont.), court had to determine whether it had and, if so, should accept jurisdiction on issue of child support. Claim for support for children resident in Ontario clearly connected to Ontario. Addressing issue of support in Ontario not unfair to non-resident father given father already participating in proceeding involving custody and access. Fact Ontario legislation likely to result in higher order for support not unfair on own. Given French court recognized Ontario's jurisdiction on custody and access issues, court also likely to recognize any Ontario support order. Real and substantial connection, sufficient to found jurisdiction, existed between subject matter of dispute and Ontario. Given custody and access issues before court in Ontario, appropriate to put child support issues before court as well. Declining jurisdiction might result in unfortunate multiplicity of proceedings. Ontario appropriate forum. Gavriluke v. Mainard (Dec. 5, 2012, Ont. S.C.J., Scott J., File No. 4281/12) 222 A.C.W.S. (3d) 1014. Human Rights Legislation DISCRIMINATION Disability dealt with physical and mental disabilities, not "socio-political limitations" Application by complainant for judicial review of Human Rights Tribunal's decision it lacked jurisdiction to grant remedy under Human Rights Code (Ont.). Applicant's employer did not permit him to return to work after he was arrested and charged with criminal offence. Applicant claimed he was discriminated against as person charged with criminal offence. Tribunal did not accept applicant's argument that persons charged with criminal offences were persons with disabilities. Applicant now claimed s. 5(1) of Code violated s. 15 of Canadian Charter of Rights and Freedoms because it did not address discrimination against persons charged with criminal offences. Application dismissed. Disability was defined by Code in s. 5(1) and dealt exclusively with physical and mental disabilities, not "sociopolitical limitations" as applicant alleged. Expanding definition as applicant wanted would subvert intent of legislature. Tribunal's decision reasonable. Applicant did not raise constitutional chal- lenge before tribunal and did not demonstrate it was in interests of justice to make exception to rule against raising constitutional issue on judicial review. De Pelham v. Hilti Canada Corp. (Oct. 10, 2012, Ont. S.C.J. (Div. Ct.), Lax, Hambly and Lederer JJ., File No. 547/11) 222 A.C.W.S. (3d) 1023. Injunctions INTERLOCUTORY RELIEF Inferred that defendants' intent to frustrate plaintiffs' pursuit of claims and collection Defendant terminated plaintiffs' employment summarily. Plaintiffs were given no notice or compensation. There was reorganization of business and business was now carried on in Michigan. Plaintiffs argued companies involved in transactions constituted common employer and were jointly and severally liable for plaintiffs' damages. Defendants had one asset remaining in Ontario. Plaintiffs' motion for Mareva injunction to prohibit sale or encumbrance of property was allowed. Plaintiffs had strong prima facie case that defendants were common employer and were jointly and severally liable for plaintiffs' damages. Plaintiffs made full and frank disclosure. Plaintiffs gave full particulars of claim. Plaintiffs gave undertaking in damages. There was risk asset would be dissipated and would be unavailable to satisfy judgment. It was inferred that defendants' intent was to frustrate plaintiffs' pursuit of claims and collection of any judgment. Kingston v. GMA Cover Corp. (Sep. 5, 2012, Ont. S.C.J., Gray J., File No. 209/12) 222 A.C.W.S. (3d) 1040. Professions PHYSICIANS AND SURGEONS Causation did not need to be determined with scientific precision Surgeon removed cancerous tumour from plaintiff. Radiologist reviewed CT scan and reported it as normal. Radiologist missed visible lesion. Jury found radiologist negligent and awarded plaintiff damages. Radiologist appealed. Appeal was dismissed. Jury was properly instructed on causation. Jury was entitled to rely on expert evidence that plaintiff 's chance of cure exceeded 50 per cent in deciding issue of causation. Causation did not need to be determined with scientific precision. Trial counsel for radiologist did not object to charge on causation on basis of errors and omissions alleged on appeal. Causation issue was fully explored at trial. Award for future income loss was not unreasonable and trial counsel failed to raise issue before trial judge notwithstanding opportunity to do so. Beldycki Estate v. Jaipargas (Aug. 10, 2012, Ont. C.A., Watt, Sharpe and Armstrong JJ.A., File No. C53118) 222 A.C.W.S. (3d) 1073. LT

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